[Congressional Record Volume 147, Number 177 (Wednesday, December 19, 2001)]
[Senate]
[Page S13666]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. KENNEDY. Mr. President, we have been hearing a steady drumbeat of 
complaints from our Republican colleagues about the pace of judicial 
confirmations by the Senate. For all who know the facts, there is no 
basis for the charge that Democrats have engaged in delay tactics on 
judicial nominees. In fact, the Democratic Senate has been 
significantly more diligent in confirming judges under the Bush 
administration than the Republican Senate was at any point under the 
Clinton administration.
  In the 5 months since Democrats gained control of the Senate, the 
Judiciary Committee has already held 11 hearings on judicial nominees. 
Under Chairman Leahy's leadership, we held hearings during the August 
recess, and also just 2 days after the terrorist attacks. In addition, 
we held a hearing in the Capitol Building, when the Senate offices were 
closed by the anthrax contamination.
  As a result, 27 judges have already been confirmed in the 5 months 
since Democrats took control of the Senate. By the time the Senate 
adjourns, we are likely to have confirmed more than 30 judges--more 
than were confirmed during the entire first year of President Clinton's 
first term in office when Democrats controlled the Senate, and more 
than double the number confirmed during the entire first year of the 
first Bush administration.
  Our record is good by any measure. It becomes even better when we 
compare it to the record of the Republican majority when they 
controlled the Senate during the Clinton administration.
  We have held 11 judicial nomination hearings in just 5 months, almost 
all of which have included several judges per hearing. In 1999 and 
2000, the Republicans held an average of only seven hearings for the 
entire year.
  In confirming 24 judges since the August recess, we have had a more 
productive post-August-recess period than any Republican-led Senate did 
for a comparable period in the last 6 years.
  Some Republicans are now blaming Democrats for the current number of 
vacancies on the Federal bench. But these vacancies were largely caused 
by the tactics of the Republican majority over the last 6 years. We 
know that our colleagues worked to impede President Clinton's executive 
branch nominees such as Bill Lann Lee, nominated to head the civil 
rights division, and Dr. Satcher, the nominee for Surgeon General. Our 
colleagues also blocked or attempted to block President Clinton's 
judicial nominees by delaying or refusing to hold hearings, and 
refusing to allow the Senate to vote on some nominees. The average 
length of time a circuit court nominee waited for a hearing under the 
Republican Senate was about 300 days. Some nominees waited up to 4 
years for a hearing. In 6 years, the Republican Senate failed to 
confirm nearly half of President Clinton's nominees to the circuit 
courts. As a result, vacancies in the Federal courts increased by 60 
percent.
  No one suggests that Senate Democrats should follow the example the 
Republicans set over the past 6 years. The Judiciary Committee should 
and will continue to move forward in confirming nominees to the Federal 
court in a prompt manner. But it is wrong for any of us in the Senate 
to abdicate our responsibility to thoroughly review the record of each 
nominee. Lifetime appointments are at stake. The need for careful 
review is important not just for Supreme Court nominees but for 
nominees to the lower Federal courts as well. These courts hold immense 
power. Many important legal issues in this country are decided at the 
Court of Appeals level, since the Supreme Court decides fewer than 100 
cases per year.
  I voted to confirm most of the judges nominated by President Reagan 
and the first President Bush. The Senate's constitutional duty of 
``advice and consent'' does not mean that the Senate should be a rubber 
stamp. It certainly does not require the approval of Federal judges who 
have displayed hostility to core Federal constitutional and statutory 
protections, or who have an extreme ideological agenda. Judges who are 
highly qualified, have a balanced judiciary temperament, and who are 
committed to upholding the Constitution and Federal law are judges that 
Senators on both sides of the aisle can support. But we should not 
support nominees with records that suggest they will roll back the 
rights and protections that Americans consider vital.
  All nominees should have their records examined thoroughly, and they 
should have hearings to answer questions about their records. Because 
these are lifetime appointments to courts that make decisions deeply 
affecting the nation, full and fair review is the least the Senate owes 
the American people.
  The Senate has worked well together this year on a number of 
bipartisan efforts, including education, airline security, and 
bioterrorism. On the issue of judges, all of us on the Senate Judiciary 
Committee know that we can work well with the administration and with 
Senators on both sides of the aisle to confirm nominees for our Federal 
courts who are highly qualified, fair, and committed to upholding the 
Constitution and the Nation's laws. I look forward to greater efforts 
in the time ahead to achieve that very important goal.
  I am reminded of the fact, in reviewing the Constitutional 
Convention, that perhaps the last major decision made at the 
Constitutional Convention was to change what had been initially 
accepted by the Founding Fathers, and that was the Senate was going to 
appoint Federal judges. The Senate would do it by itself. One of the 
last decisions made by the Founding Fathers was to have this as a 
shared responsibility.
  It seems to me that is something that sometimes this institution 
loses sight of, as do the American people sometimes. They believe that 
once nominated, we, in effect, should be a rubber stamp to these 
nominees. In reading constitutional history, we will find, to the 
Founding Fathers this was an issue of enormous importance and 
consequence. They made it extremely explicit that they believed the 
responsibility ought to be an equally shared responsibility between the 
President and the Senate. It does seem to me we should meet that 
responsibility in ways that are fair, that reveal the qualities of the 
individual, and make a judgment and a decision based upon that process.

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